Wednesday, February 23, 2011

The Justice Department has just announced that it will no longer defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). That's the section that defines a married couple for federal law purposes as a man and a woman. The announcement comes in the context of cases pending in the Second US Circuit Court of Appeals brought by GLAD and the ACLU.

Nothing will change right away. The administration will continue to enforce DOMA as written. And it will do everything possible to facilitate the ability of Members of Congress to enter the litigation for the purpose of defending the statute. I am certain they will do so. The administration will wait until a final judicial ruling in the cases (or repeal by Congress) to change its approach to married same-sex couples.

The reasoning behind the decision is as important as the decision itself. DOJ and the President have concluded that sexual orientation should be considered a "suspect classification" under the Equal Protection Clause of the Constitution. That means that all distinctions between gay and straight people would have to be justified as "necessary" to achieve a "compelling state interest." (That's hard to do.) But the US Supreme Court has the final word on Equal Protection analysis, and NYU law prof Kenji Yoshino has a recent article in the Harvard Law Review explaining why the Court is unlikely to expand at all the list of groups entitled to suspect class status.

DOJ released its statement as I was putting the final touches on a short commentary I've written as part of a colloquium of the Harvard Civil Rights-Civil Liberties Law Review centered around a piece by Northeastern law prof Libby Adler critiquing the "equal rights" framework for its limitations in meeting the needs of LGBT people. My commentary focuses specifically on the DOMA litigation that is the subject of this DOJ opinion. (How timely of me!)

Basically, I explain that treating married same-sex couples as married under federal law will help some couples but it will hurt others. That's because not all marriages are equal under federal law. Marriages that are based on the single breadwinner, stay-at-home mom model make out like bandits. They pay less in federal income tax and they get much more in social security benefits than marriages in which the two spouses are closer-to-equal earners. In fact, with respect to social security, all of us, including equal earning spouses, heavily subsidize the white family form of 1939 that lawmakers had in mind when they created social security spousal benefits. Eliminate DOMA and all of us, including same-sex married couples with two close-to-equal earning spouses, will continue to subsidize that 1939 model; but now the model will encompass same-sex couples with one high income earner. The close-to-equal earners will also get socked with the marriage penalty when they pay their income taxes; the traditionally gendered model will get a huge marriage bonus.

I understand that this is the consequence of an equal rights framework. Same-sex married couples get what different-sex married couples have. That doesn't make it just. Imagine a world in which our tax and benefit structure did not privilege single high wage earner married couples. Apparently that is harder to achieve than federal recognition of same-sex marriages. But if we care about real world impact on the lives of lesbians and gay men, we should be looking for justice, since most of us are not married couples with a single high wage earner.

There will be much rejoicing today. From a gay civil rights perspective there's much to be happy about. But economic justice and fair family policies are another matter, and I won't throw a victory party til we have those.

4 comments:

I have been following your on line writing over the last year or so. Your posts make for enjoyable and informative reading. Your entry above regarding the Obama administrations position on no longer defending DOMA was so absolutely correct when it stated

"The reasoning behind the decision is as important as the decision itself. DOJ and the President have concluded that sexual orientation should be considered a "suspect classification" under the Equal Protection Clause of the Constitution. That means that all distinctions between gay and straight people would have to be justified as "necessary" to achieve a "compelling state interest." (That's hard to do.)"

Where I don't agree with your post is the importance you place on the marriage penalty when a married couple who have fairly equal incomes files jointly. So what? Every married couple is subject the same penalty. The flippancy of my response is due to the fact that there is much wrong with the current tax code when it comes to equitable treatment and sound fiscal policy that I think you fight that battle in a different forum. I mean I think it is unfair that investment income is taxed at a lower rate that earned income. I think the tax rate on the upper and upper-middle classes is current so low as to be economically egregious. But these are American issues, issues I have with Republicans in most cases and Democrats in a few cases.

What's so huge about this Administrations position is it opens up for question and resolution the places where the laws painfully discriminated against the LGBT community. I refer to matters of medical care and health insurance benefits for a life-partner, the end of denying same sex widows or widowers death and pension benefits belonging to the deceased that passes to the spouse in a heterosexual marriage, or the grave injustice suffered my LGBT members who are unable to bring their non-US spouse to America or have their non-US Citizen spouse permanently exported, to name just a few. What the administration did today was put a huge crack in the cesspool of government sanctioned discrimination. The crack may not be large enough to instantly empty to polluted waters, but at the contaminated water drains out, the hole will become forever larger and the polluted unjust laws will be sucked out ever faster.

By and large though I share your views, along with a slightly different spelling of the same last name!

I think you are on to something important regarding the injustice of tax codes and biases toward a 1939 family type, but I too believe that the tremendous import of this decision outweighs (at least for now) that discussion.

I think you might also consider that a significant percentage of individuals have benefitted from being forced to claim themselves as "single" when in fact they were a gay couple

- for example, a gay HIV positive man who received means tested benefits to supplement his disability income will eventually be compelled to state that he is "married"

- this could influence the way in which his application for assistance is viewed, since his married partner could be seen to have marital obligations to contribute to his support, before the government would be willing to do so . . .

And though I can think of other instances where I agree with your premise about this being a "two-edged sword" -- when I recall all the expense and heartache DOMA caused for me and my partner over the past 11 years, I can only welcome this new development from Obama.

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.